Terms of Service

The following terms and conditions apply to all users of the Mixmaster application, available through the Apple™ iTunes™ store, as well as visitors to or users of www.mixmaster.com (“the Mixmaster Software”), including participation in its bulletin boards, forums, chats, and all other areas (except to the extent stated otherwise on a specific page) as provided by Mixmaster (Mixmaster). By accessing or using the Web Site, you accept and agree to be legally bound by these Terms of Use and any additional terms and conditions presented on the Web Site, including, but not limited to, those that relate to data privacy provided in the Privacy Policy, terms of sale, or other terms relating to transactions or activities with respect to products or services (“Additional Terms”). To the extent that there is any conflict or inconsistency between these Terms of Use and any Additional Terms respecting specific Web Site Content, the Additional Terms shall govern with respect to such Web Site Content.

You may not access or use the Mixmaster Software if you (a) do not agree to these Terms of Use or (b) are prohibited from accessing or using the Mixmaster Software by applicable law. Mixmaster reserves the right to change these terms and conditions from time to time at its sole discretion with or without prior notice. Your continued use of the Mixmaster Software after a posted change in these terms and conditions will constitute your acceptance of and agreement to such changes. Accordingly, you are advised to visit this page regularly in order to keep informed of any changes in these terms and conditions. In the case of any violation of these terms and conditions, Mixmaster reserves the right to seek all remedies available for such violations, whether by law, in equity or otherwise.

Your failure to follow these Terms of Use may result in suspension or termination of your access to the Mixmaster Software, without notice, in addition to other remedies available to Mixmaster.

Your agreement to these Terms of Use is personal to you and may not be assigned without the prior written consent of Mixmaster.

Disclaimer Of Warranties; Limitation Of Liability

Although Mixmaster has attempted to provide accurate information on its website, it is your responsibility to review the information and determine its accuracy and applicability to you as an individual. Mixmaster assumes no responsibility for, and makes no representation or warranty of, the completeness, accuracy, reliability, timeliness or currency of the Mixmaster Software. Under no circumstances will Mixmaster be liable for any loss or damage, of any nature, caused by your reliance on, or use of information from, the Mixmaster Software. Mixmaster may change products or services mentioned at any time with or without notice.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE ADDITIONAL TERMS WITH RESPECT TO SPECIFIC SUBJECT MATTER OR AGREED TO BY MIXMASTER IN WRITING: THE MIXMASTER SOFTWARE, AND ALL INFORMATION, DATA, MATERIALS AND OTHER CONTENT (INCLUDING, WITHOUT LIMITATION, ALL SERVICES AND SOFTWARE) PROVIDED, GENERATED OR MADE AVAILABLE BY, WITH OR THROUGH THE MIXMASTER SOFTWARE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW. EACH OF MIXMASTER, ITS AFFILIATES AND ITS LICENSORS, EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OR CONDITION: OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NONINFRINGEMENT; OR WITH RESPECT TO THE OPERATION OR USE OF THE MIXMASTER SOFTWARE; OR OF THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, CURRENCY OR TIMELINESS OF ANY OF THE MIXMASTER SOFTWARE; OR THAT ARISES FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR TRADE PRACTICE.

NEITHER MIXMASTER, NOR ANY OF ITS AFFILIATES OR LICENSORS, REPRESENTS OR WARRANTS THAT THE MIXMASTER SOFTWARE, SERVICES OR SOFTWARE INCLUDED ON OR OTHERWISE AVAILABLE TO YOU ON OR THROUGH MIXMASTER, OR ANY SERVERS HOSTING THE MIXMASTER SOFTWARE, OR ANY E-MAIL SENT BY OR ON BEHALF OF MIXMASTER, ARE OR WILL MEET YOUR REQUIREMENTS, BE ERROR-FREE OR FREE OF VIRUSES, WILL NOT DISABLE DEVICES OR OTHER COMPONENTS, OR THAT YOU WILL HAVE SECURE, TIMELY, CONTINUOUS OR UNINTERRUPTED ACCESS TO OR USE OF THE MIXMASTER SOFTWARE, OR THAT THERE WILL BE NO ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SOFTWARE.

NO ADVICE, STATEMENT OR INFORMATION BY OR ON BEHALF OF MIXMASTER, OR ITS AFFILIATES OR LICENSORS, WHETHER IN ORAL, WRITTEN OR OTHER FORM, SHALL CREATE ANY REPRESENTATION OR WARRANTY NOT EXPRESSLY MADE IN THESE TERMS OF USE. ALL ACCESS TO AND USE OF MIXMASTER SOFTWARE IS AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL LOSSES AND DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOSS OF OR DAMAGE TO YOUR BUSINESS, COMPUTER SYSTEM OR DATA, THAT MAY RESULT FROM YOUR ACCESS TO OR USE OF THE WEB SITE OR ANY WEB SITE CONTENT.

NEITHER MIXMASTER NOR ANY OF ITS AFFILIATES OR LICENSORS SHALL BE LIABLE FOR ANY DAMAGES OR INJURY OF ANY KIND ARISING FROM OR IN CONNECTION WITH (A) THESE TERMS OF USE OR ANY OF THE ADDITIONAL TERMS, OR (B) THE SALE OR PURCHASE OF ANY GOODS OR MERCHANDISE TO OR FROM MIXMASTER, OR © ANY RELIANCE ON, USE OF, OR INABILITY TO USE THE MIXMASTER SOFTWARE, GENERATED OR MADE AVAILABLE BY, WITH OR THROUGH THE MIXMASTER SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, BUSINESS, BUSINESS OPPORTUNITIES OR REVENUES, LOSS OF GOODWILL OR REPUTATION, COSTS OF REPLACEMENT GOODS OR SERVICES, ANY LOSS, DELETION OR CORRUPTION OF, OR DAMAGE TO, HARDWARE, SOFTWARE OR DATA, ANY INCONVENIENCE OR BUSINESS INTERRUPTION, OR ANY DIRECT, INDIRECT, GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, ENHANCED, TREBLED OR MULTIPLE DAMAGES WHATSOEVER, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, INDEMNIFICATION OR ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SUCH LOSSES OR DAMAGES ARE FORESEEABLE OR MIXMASTER OR ITS AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL MIXMASTER’S LIABILITY, UNDER ANY THEORY, NO MATTER HOW CALCULATED, EXCEED FOUR (4) U.S. DOLLARS.

WITHOUT LIMITATION OF THE FOREGOING PARAGRAPH, MIXMASTER WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY ARISING FROM OR IN CONNECTION WITH ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT OR DELAY IN OPERATION OR TRANSMISSION, ANY COMPUTER VIRUS OR OTHER HARMFUL CODE OR COMPONENT, OR ANY LINE FAILURE.

BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, CONDITIONS OR CATEGORIES OF DAMAGES, CERTAIN OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, MIXMASTER’S WARRANTIES, CONDITIONS AND LIABILITY ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES IN PART: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.

Access To And Use Of Content – Limited License

You are hereby granted, subject to these terms and conditions, a limited, revocable, non-exclusive, non-transferable, fully-paid, royalty-free license solely to utilize the Mixmaster Software as is needed for your own internal, non-commercial, non-public use (the “Mixmaster Software License”). Permitted access to and use of the Mixmaster Software is limited to your personal use of the Mixmaster Software.

You acknowledge and agree that the Mixmaster Software contains certain Mixmaster confidential and proprietary information, and that you will not use or disclose such Mixmaster Confidential Information except as and to the extent expressly permitted by these Terms of Use.

Your Mixmaster Software License is subject to the terms and conditions of these Terms of Use, including, without limitation, the Obligations and Restrictions set forth below. No right, license or permission is granted to you by these Terms of Use other than those expressed herein, including, but not limited to, any license or permission to copy, reproduce, distribute, publish, transmit, download, display in public, or modify the Mixmaster Software in any manner, to any extent, by any means, in any medium or for any purpose.

Obligations And Restrictions

You must be over the age of seventeen (17) and above the legal drinking age in your country of residence to register as a user of the Mixmaster Software or otherwise submit or provide any personally identifiable information to Mixmaster.

By your access to or use of the Mixmaster Software, you agree that you will not yourself, and will not induce, assist, or cause others to, directly or indirectly, for any purpose, to any extent, by any means or in any form, format or medium whatsoever, whether now known or hereafter developed (including, but not limited to, via the Internet or any other public or private computer, communications or data network): disassemble, decompile, reverse engineer or otherwise attempt to derive or extract the source code of any of the software comprised by the Mixmaster Software; access, use, disclose, publish, transmit, display, distribute or provide or permit access to, in any way for any commercial purpose, the Mixmaster Software, or any modifications, adaptations, translations, summaries, abstracts or derivative works or materials thereof; disclose, publish, transmit, display, distribute, or provide or permit access to any user name or identification, password, or access code, any Mixmaster Software content marked as “Confidential”, or any restricted-access portion of the Mixmaster Software (each of the foregoing herein referred to as Mixmaster “Confidential Information”), in whole or in part, to any person or entity; access, use, disclose, publish, transmit, display, distribute, provide or permit access to any Confidential Information, in whole or in part; access, use, disclose, publish, transmit, distribute, display or provide or permit access to, the Mixmaster Software, in whole or in part, (i) to the detriment of Mixmaster, (ii) to, on behalf of, or for the benefit of any third party, or (iii) for purposes of any public or commercial use or exploitation, including, but not limited to use by or for the benefit of any competitor of Mixmaster; transfer, license, sublicense, sell, lease, rent, loan, trade, exchange or make any other public or commercial use or exploitation of the Mixmaster Software, or any modifications, adaptations, collections, compilations, recompilations, translations summaries, abstracts or derivative works or materials thereof, in whole or in part; access or use the Mixmaster Software in any unlawful manner or for any unlawful purpose; damage, disrupt, disable, inhibit, restrict, overload, overburden, or interfere with the operation, or others’ access to or use, of the Mixmaster Software; attempt to gain any unauthorized access to the Mixmaster Software; access the Mixmaster Software by means other than the interface provided by Mixmaster or through the platforms or portals of persons expressly authorized to link to the Mixmaster Software; or conduct any data mining or harvesting, or use any robot, web crawler or other data mining, gathering or extraction software, tool, method or technology to obtain access to, or information, data or other content from or through, the Mixmaster Software; or create or maintain any link between another web site and this website or the Mixmaster Software or any part hereof without Mixmaster’s prior written approval.

Any access or attempt to access other areas of the Mixmaster computer system or other information contained on the system for any purpose is strictly prohibited. Violations of the Mixmaster’s system or network security may result in civil or criminal liability. You acknowledge and agree that: (a) you will safeguard the confidentiality of the Confidential Information by taking all precautions with respect to the Confidential Information that you take to protect your own confidential and proprietary information, in no event using less than a reasonable degree of care; (b) you will immediately notify Mixmaster of any unauthorized access to or use of the Mixmaster Software or Confidential Information, including, but not limited to, your registration information, password, user name or identification, access code or account; (c) except as otherwise expressly agreed by Mixmaster in writing, Mixmaster may at any time, in its sole discretion and with or without notice to you, revoke or modify, in whole or in part, your Mixmaster Software License and/or temporarily or permanently disable your access to the Mixmaster Software or Confidential Information; (d) if Mixmaster disables access to your account, you may be prevented from accessing the Mixmaster Software and/or your account information; and (e) all of your rights, licenses and permissions under these Terms of Use, including your Mixmaster Software License to access and use the Mixmaster Software, will terminate automatically and immediately if you violate any of these Terms of Use or any other terms and conditions of your agreement with Mixmaster respecting any specific content or feature of the Mixmaster Software; and (f) Mixmaster may take any action to enforce these Terms of Use or the Additional Terms or to protect against unlawful or improper access to or use of the Mixmaster Softare or Confidential Information, including, but not limited to, terminating or suspending your registration for service through the Mixmaster Software, blocking your access to some or all of the Mixmaster Software, contacting police or government authorities, and taking legal action against you.

Links

From time to time, other web sites and sources may provide hypertext links (“Links”) or otherwise refer to the Mixmaster Software. Similarly, the web site may include links or references to web sites or sources provided by companies or persons other than Mixmaster. No such Links or references shall imply any relationship or connection between Mixmaster and the owner or operator of any other web site or other source, or any sponsorship, endorsement, representation or warranty by Mixmaster of or respecting such web site or other source, or its contents, owner, operator, data privacy policies or business practices. Mixmaster has no responsibility or liability to you arising out of or in connection with any such non-Mixmaster web site or source, including, but not limited to, any use of or reliance upon any associated content, product, service or transaction. You understand, acknowledge and agree that all access to and use of any such non-Mixmaster web site or source by you shall be at your own risk.

Registration Information

You may be required to register with and/or set up an account to use the Mixmaster Software. In this connection, you may be required to establish a user identification name, password, or other registration information (collectively, “Registration Information”). You agree and represent that all Registration Information that you provide is current and accurate. You further agree not to falsely identify yourself in any manner with respect to the Registration Information. You are responsible for maintaining the confidentiality of the Registration Information, and you agree to change any Registration Information which you have reason to believe is no longer secure (e.g. caused by identity theft). You are solely responsible for all activity on your account, including activity of any person who uses your Registration Information, with or without authorization, to access the Mixmaster Software. Your Registration Information may not be sold, licensed, or otherwise transferred without the written approval of Mixmaster.

User Generated Comments Not Endorsed By Mixmaster

Any and all information, comments, statements, links or other content placed on the Mixmaster Software, its website, by visitors to the web site or users of the Mixmaster Software, including but not limited to advice and opinions, are the views and responsibility of the poster and do not necessarily represent the views or opinions of Mixmaster, its affiliates or licensors. Mixmaster does not necessarily verify, encourage, agree, endorse, support or sanction any of the content placed on its website or the Mixmaster Software by visitors or users, including but not limited to comments, opinions, statements or links posted on forums, blogs, bulletin boards or otherwise. You agree that Mixmaster, its affiliates and licensors, are not responsible and shall have no liability to you with respect to any information, comments, statements, links, communications or other content posted by visitors to Mixmaster’s website or within the Mixmaster Software, including but not limited to any offensive, defamatory, or illicit materials, even if such materials are in violation of these Terms of Use. You shall not submit any content protected by any intellectual property or other third party right without the express permission of the owner.

Trademarks And Rights Of Publicity / Privacy

The trademarks, service marks, personal names, personal images, logos, domain names, page headers, button icons, graphics, color schemes, photographs and trade dress (“Marks”) displayed in the Mixmaster Software are the exclusive property of Mixmaster, its licensors, or third parties. You are not permitted to use these Marks without the prior written consent of Mixmaster or such third party that owns the Mark.

Copyright And Other Intellectual Property Rights

You acknowledge and agree that: All content on this website and within the Mixmaster Software is the property of Mixmaster or its licensors and is protected by United States and international copyright and other intellectual property laws. All listings, collections and compilations of data or other content provided, generated or made available by, with or through this website or the Mixmaster Software, are the original works and exclusive property of Mixmaster and are protected by United States and international copyright and other intellectual property laws. All rights are hereby reserved by Mixmaster subject solely to such limited Mixmaster Software License as is expressly granted and in effect pursuant to these Terms of Use. No act in respect of any portion of the Mixmaster Software shall constitute a transfer of any right, title or interest therein.

You will, and hereby do, irrevocably assign to Mixmaster and its successors and assigns all right, title and interest (including all copyrights and other intellectual property rights) in, to and under, all and any portion of any writings, expressions, compilations, recompilations, copies, reproductions, modifications, translations, improvements, edits, enhancements, adaptations, customizations, summaries, abstracts or derivative works, information or materials originated, created, compiled or developed by you or on your behalf that use or incorporate, or are based on or derived from, all or any portion of the Mixmaster Software (including any Confidential Information) in any electronic, written or other form, manner or medium now known or hereafter developed (“Mixmaster Software Modifications”). If any other person is deemed to possess any right, title or interest in, to or under any such Mixmaster Software Modifications (the “Author”), you will cause the Author irrevocably to assign all such right, title and interest to Mixmaster and its successors and assigns, or, to the extent that any such right, title or interest is inalienable under applicable law, you will cause the Author to waive and agree not to exercise any such right, title or interest against Mixmaster, its affiliates or licensors. If and to the extent that the foregoing assignments and waiver are deemed unenforceable or invalid, or otherwise fail to transfer to Mixmaster and its successors and assigns any such right, title or interest in respect of any such Mixmaster Software Modifications, you will and hereby do grant or cause to be granted to Mixmaster and its successors and assigns a fully-paid, royalty-free, exclusive, perpetual, irrevocable, transferable, worldwide right and license, with the right to sublicense, to use, copy, reproduce, modify, adapt, translate, collect, compile, recompile and prepare summaries, abstracts, derivative works, improvements, and enhancements of such Mixmaster Software Modifications, and to make any public, commercial or other use or exploitation of the foregoing, without identifying the Author or seeking the Author’s prior consent.

You further agree: To do nothing inconsistent with any of Mixmaster or its licensors’ intellectual property or other proprietary rights in respect of the Mixmaster Software or Confidential Information, or with any license or restrictions hereunder; not to delete, edit, efface, mask, obscure or alter any part or aspect of the Mixmaster Software, or any copyright, trademark, patent, or other proprietary or confidentiality notice used or posted by Mixmaster in connection therewith; and to take all reasonable steps (including, without limitation, the preparation, signing and delivery of any assignments and other documents or instruments) at Mixmaster’s request to perfect, evidence, record or enforce Mixmaster’s or its affiliates’ or licensors’ intellectual property or other proprietary rights in respect of the Mixmaster Software or Confidential Information, Mixmaster Software Modifications or any modifications, adaptations, collections, compilations, recompilations, translations, summaries, abstracts or derivative works or materials thereof.

Submissions

You agree that, subject to Mixmaster’s Privacy Policy with respect to Personal Information: All remarks, suggestions, ideas, graphics, information, materials, communications and other content communicated or otherwise made available to Mixmaster through the Mixmaster Software (each a “Submission”) shall be the exclusive property of Mixmaster. In order to facilitate this, you hereby irrevocably transfer, assign and convey to Mixmaster and its successors and assigns all right, title and interest in, to and under any Submissions you communicate or otherwise make available to Mixmaster through the Mixmaster Software. Note that Mixmaster does not monitor the content of messages entered with Mixmaster functionality; rather, this Section refers to communications explicitly sent to Mixmaster, including, but not limited to, email communications and posts to any forum or bulletin board hosted by or on behalf of Mixmaster. Mixmaster will not be required to treat any Submission as confidential, and will not be required to provide any compensation or consideration or be liable for any copying, reproduction, modification, adaptation, translation, collection, compilation, recompilation, preparation of summaries, abstracts, derivative works or materials, or any publication, distribution, display, disclosure, sale, licensing, or other use or commercial exploitation, of any ideas or other Submissions, or any tangible or intangible subject matter similar to, or using, incorporating, derived from or based on, any Submission, in whole or in part. You agree that you will not yourself, and will not induce, assist, or cause others to, directly or indirectly submit or make available to or through the Mixmaster Software any content, code or other matter that: consists of or contains any viruses, bugs, worms, trojan horses or other harmful computer code; is false, fraudulent, deceptive, tortious, illegal, obscene, threatening, harassing, hateful, abusive, vulgar, indecent, defamatory, racially, ethnically, sexually or otherwise objectionable, invasive of privacy, infringing of intellectual property rights, or embarrassing, harmful or injurious to any person or entity; consists of or contains any impersonation or false, deceptive, incorrect, inaccurate, or non-current registration information, e-mail address or identification information or designation, including any misrepresentation of affiliation or association; or consists of or contains any commercial solicitation, mass mailing, junk mail, spam or chain letter, or political campaign material.

You represent, warrant and covenant that: You own or otherwise control all rights to the Submissions you provide or make available to the Mixmaster Software, and have all rights, power and authority required to provide such Submissions to the Mixmaster Software and to assign your rights in the Submissions to Mixmaster; all such Submissions by you are and will be true, current and accurate; no use of your Submissions will violate or infringe any rights of, or cause any injury to, any person or entity; you are solely responsible and liable for any Submissions you provide or make available to the Web Site (including for any loss or damage Mixmaster or others may suffer as a result of or in connection with any such Submission); Mixmaster shall have no responsibility or liability to you or any third party with respect to any Submissions. Mixmaster reserves the rights (but shall have no obligation): (a) to save and archive any Submission, (b) to disclose any Submission or other information as necessary or appropriate to comply with any law, regulation or governmental request or legal process, to operate the Mixmaster Software, to respond to claims that any Submission or Mixmaster Software content violates any property, privacy, publicity or other right of any person or entity, or to protect the rights, property or safety of Mixmaster or third parties; and © to update, screen, monitor, filter, review, remove and/or edit any content or feature of the Mixmaster Software, including, but not limited to, any Submissions; in each case ((a) through ©) with or without notice to you.

Mobile Terms And Conditions

Mixmaster provides the Mixmaster Software on mobile devices (“Mobile Content Program”) such as a cell phone, hand-held computer, personal digital assistant, and similar devices that would be compatible with such programs (“Device”). The following terms and conditions govern your use of the Mobile Content Program. Your use of the Mobile Content Program will constitute your agreement to comply with the terms and conditions provided below.

You acknowledge and agree that the availability of the Mobile Content Program is dependent on the third-party from which you received the Application license, e.g., the Apple iPhone or Android app stores (“App Store”). You acknowledge that these Terms of Use are between you and Mixmaster and not with the App Store. Mixmaster, not the App Store, is solely responsible for the Mobile Content Program, including the Software, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g. product liability, legal compliance, or intellectual property infringement). You agree to pay all fees (if any) charged by the App Store in connection with the Mobile Content Program, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Mobile Content Program, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of these Terms and will have the right to enforce them.

The cell phone number or any other information provided to Mixmaster to activate the Mobile Content Program is registered in your name. You agree that you will not initiate messages from the Mobile Content Program to any other person or entity and will only transmit to a Device registered to you.

All communications initiated by you in connection with the Mobile Content Program may be charged a fee by your carrier. Fees charged by a carrier for Mobile Content Program communications or transmissions are your responsibility.

In order for the Mobile Content Program to operate, you must own a Device that is compatible with Mixmaster’s Mobile Content Program and have the necessary subscription plan with your carrier. It is your responsibility to own the appropriate Device, software and carrier subscription plan to receive Mixmaster’s Mobile Content Program.

You agree not to alter, add, remove or otherwise modify the format or branding of the content provided through the Mobile Content Program. All of the content provided through the Mobile Content Program is owned by Mixmaster, its affiliates or licensors, and is protected by intellectual property laws. Your use of the Mobile Content Program is governed by the Mixmaster Software License provided herein.

The Mobile Content Program is provided on an “AS IS” basis and is governed by the Disclaimer of Warranties; Limitation of Liability provided herein.

Payment

All fees set forth and paid by you are solely in exchange for access to the Mixmaster Software. In no way are these fees paid considered payment for the sale or license to resell the Software, and, furthermore, any use of the Mixmaster Software by you in furtherance of these Terms will be considered merely in support of the purpose of these Terms.

These terms regarding payment supplement and incorporate the Terms of Use provided on the App Store(s) regarding payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not these Terms to determine your rights and liabilities. The Company reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Mixmaster Software or by delivery of direct communication(s) to you.

Privacy

Please click onto and review our Privacy Policy, the terms and conditions of which are incorporated by reference in these Terms of Use governing your access to and use of the Mixmaster Software. You agree to the use of your personally identifiable information and data in accordance with our Privacy Policy.

Your Liability And Indemnification Obligations

You are solely responsible and liable for: (a) any breach of your representations, warranties, covenants or obligations under these Terms of Use and for the consequences of such breach, including, but not limited to, any resulting loss or damage incurred by Mixmaster or third parties; (b) all activities that occur under your registration to the Mixmaster Software, password, user name or identification, access code or account; © maintaining the security, confidentiality and restricted, authorized use of all user names and identifications, passwords, and access codes to the Mixmaster Software that are in your knowledge, control or possession; (d) any and all actions and omissions by any of your personnel and/or other persons and entities under your control or for whose actions you may otherwise be held liable (it being understood and agreed that all such third party actions and omissions, which, if committed by you would constitute a breach of these Terms of Use shall constitute a breach hereof as if directly committed by you). You agree to defend, indemnify, and hold harmless Mixmaster, its affiliates, licensors and Web Site operational service providers, each of the foregoing persons’ and entities’ respective officers, directors, employees, representatives and agents, and all others involved in creating, promoting, or otherwise making available the Mixmaster or Confidential Information, and each of their respective successors and assigns, from and against any and all claims, actions, demands, costs, expenses, damages, losses and liabilities, including, but not limited to, reasonable legal and accounting fees, (“Claims and Liabilities”), that arise out of or in connection with, or result from, any of your Submissions, your access to or use of the Mixmaster Software or Confidential Information, your breach of or noncompliance with these Terms of Use or any Additional Terms, or your violation of any rights of any third party. Mixmaster will attempt to provide prompt notice to you of any such Claims and Liabilities and reserves the right to take exclusive control and defense of any claim, action or demand subject to indemnification by you, in which event you agree to cooperate fully with Mixmaster in asserting any available defenses.

No revocation, expiration or termination for any reason of any (or all) of the rights, licenses and/or privileges granted to you under these Terms of Use shall affect Mixmaster’s right to payment, as and when due, of any amounts payable by you to Mixmaster.

International Use

Mixmaster makes no representation that the Mixmaster Software is available to or appropriate for access or use outside the United States of America. Any access to or use of the Mixmaster Software in or from any territory or jurisdiction in which it is unlawful to do so is strictly prohibited. You agree that all such acts are at your own risk and that you will comply with all applicable rules, regulations and laws, including, without limitation, all laws and regulations in respect of export control.

Copyright and Intellectual Property Notice Policies To file a notice of copyright infringement respecting any Mixmaster Software content, you must provide a written notice to us that complies with applicable law (including, in the U.S., the Digital Millennium Copyright Act). To do so, please send a DMCA Takedown notice to kevin.wo@icloud.com.

Applicable Law

The laws of the State of New York and the United States will govern these Terms of Use and any dispute of any kind between you and Mixmaster arising out of or in connection with these Terms of Use, or any subject matter hereof or thereof (including, but not limited to, any Mixmaster Software content), without regard to principles of conflict of laws.

Disputes; Binding Arbitration; Waiver of Right to Class Action

Any dispute relating in any way to your access to or use of the Mixmaster Software, any products or services marketed, sold or distributed on or through the Mixmaster Software, or these Terms of Use, shall be resolved in a binding arbitration proceeding to be held in New York, NY, U.S.A. in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator may award attorneys’ fees and other related arbitration expenses, as well as pre- and post-judgment interest on any award of damages, to the prevailing party, in their sole discretion. The parties agree that one arbitrator shall be required. Any award of the arbitrator shall be deemed confidential information, except to the extent public disclosure of such information is required by applicable securities laws or regulations. Further, to the fullest extent allowable by law, you explicitly agree and covenant to waive any and all right to join any class action law suit, litigation, or group proceeding against Mixmaster, including, but not limited to, actions under the Federal Rules of Civil Procedure Rule 23. Notwithstanding the above, Mixmaster shall have the right to apply for an injunction or other emergency relief in any jurisdiction.

Equitable Relief

You understand and agree that money damages would not be an adequate remedy for any breach by you of these Terms of Use and that Mixmaster shall be entitled to equitable relief, including preliminary and permanent injunctions and specific performance, as well as recovery of its court costs, expenses and reasonable attorneys’ fees, if you breach or threaten to breach any provision hereof or thereof. Such remedies shall not be exclusive, shall be in addition to all other remedies available at law, equity or otherwise for your breach of these Terms of Use, and shall be available to Mixmaster without requirement that it post any bond or prove any actual damages.

Terms of Agreement; Severability

Except as otherwise expressly agreed to by Mixmaster in writing, these Terms of Use and the Additional Terms: (a) constitute the entire agreement between you and Mixmaster with respect to the subject matter hereof, including, but not limited to, your access to and use of the Mixmaster Software; and (b) supersede all prior representations and agreements, whether oral, written or other, between you and Mixmaster with respect to such subject matter.

No terms or conditions of any purchase order, agreement, offer, sales or order acknowledgment, or other document or communication that is different from, inconsistent with or contrary or in addition to these Terms of Use or any of the Additional Terms shall be of any force or effect unless accepted in writing by Mixmaster. The Additional Terms of your agreement with Mixmaster with respect to any specific content or feature of the Mixmaster Software are provided via links that will appear in or through your use of that content or feature. Certain Additional Terms can be found, for example, by clicking on the following link: Privacy Policy.

If any provision of these Terms of Use or of the Additional Terms is held to be void, invalid or unenforceable in any jurisdiction, the provision shall be severable without in any manner affecting its validity or enforceability in any other jurisdiction or the validity or enforceability of the remaining provisions in that or any other jurisdiction. Such severed provision shall be deemed modified to the limited extent required to permit its enforcement in a manner that most closely reflects the intention of the parties as expressed in these Terms of Use and the Additional Terms.

Non-waiver

No failure or delay of Mixmaster to exercise or enforce any right, remedy or privilege shall constitute or result in any loss or waiver of that, or any other, Mixmaster right, remedy or privilege, in whole or in part.

Mixmaster Affiliates

Each of Mixmaster’s affiliates and licensors shall be third party beneficiaries to these Terms of Use and the Additional Terms, and shall be entitled to directly rely on and enforce any provisions of these Terms of Use or Additional Terms which confer a benefit on or rights in favor of Mixmaster. No other person or entity shall be a third party beneficiary to these Terms of Use or the Additional Terms.

Survival of Terms

All provisions of these Terms of Use and of the Additional Terms that consist of or relate to notices, ownership of intellectual or other property, confidentiality obligations, representations, warranties, limitations of liability, disclaimers, indemnification, dispute resolution, governing law, venue or jurisdiction, or any prohibitions or restrictions respecting any access to, use of, or other activities concerning the Mixmaster Software or Confidential Information, shall survive the revocation, expiration or termination, in whole or in part, of these Terms of Use or the Additional Terms, or any license hereunder or thereunder, however and whenever occurring.